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holding that state prisoners must use § 2254 instead of § 2241 to collaterally challenge convictions, absent extraordinary circumstances
Summary of this case from Baptiste v. CostelloOpinion
CV 00-2681 (RR)
September 26, 2002
Alton McMillan, DIN No. 00-A-3334, Clinton Correctional Facility, Dannemora, NY, Plaintiff, pro se.
Honorable Charles J. Hynes, Kings County District Attorney, Amy Applebaum, Assistant District Attorney, Brooklyn, NY, Attorney for Respondent
Memorandum and ORDER
On December 20, 1995, this court sentenced Alton McMillan to a term of seven-years incarceration for his role in a conspiracy to commit robbery, see United States v. McMillan, CR 94-460 (RR), which term was to run concurrently with the indeterminate sentence of twelve and one-half to twenty-five years that McMillan was already serving on his 1994 New York State conviction for Robbery in the First Degree, see N.Y. Penal Law § 160.15 (McKinney 1999). Proceeding pro se, McMillan now collaterally challenges that state conviction by petitioning this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He submits that (1) his state guilty plea was deficient in that it did not establish the elements of the charged crime; and (2) trial and appellate counsel were constitutionally ineffective.
Respondent opposes the petition as untimely in light of the one-year filing limitation established by 28 U.S.C. § 2244(d)(1)(A). That section requries prisoners raising collateral challenges to state convictions pursuant to 28 U.S.C. § 2254 to file for relief within one year of when their conviction becomes final. A conviction affirmed on direct appeal is considered final after a writ of certiorari has been denied by the United States Supreme Court or upon expiration of the 90-day period for seeking certiorari. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). McMillan's conviction was affirmed by the Appellate Division, Second Department, on January 15, 1997. See People v. McMillan, 236 A.D.2d 561, 654 N.Y.S.2d 633 (2d Dep't 1997). On May 29, 1997, the New York Court of Appeals denied an application for leave to appeal. See People v. McMillan, 89 N.Y.2d 1097, 660 N.Y.S.2d 391 (1997). Because McMillan did not petition the Supreme Court for certiorari, his conviction thus became final ninety days later on August 27, 1997. Pursuant to 28 U.S.C. § 2244(d)(1)(A), he would normally have had until August 27, 1998 to file for relief under § 2254.
The statutory one-year limitations period may, however, be tolled during the time a prisoner's application for any post-conviction or collateral review is pending in the state courts. See 28 U.S.C. § 2244(d)(2). McMillan filed a collateral challenge to his conviction in New York Supreme Court on July 22, 1997, i.e., before the limitations period even began to run in his case. His motion was denied on January 15, 1998; McMillan received notice of this decision on February 9, 1998, and did not thereafter seek leave to appeal. Accordingly, the one-year limitations period began to run in his case on March 11, 1998, the date on which his time to seek leave to appeal expired. Thus, any § 2254 motion would have had to have been filed on or before March 11, 1999. Bennet v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999). His petition to this court, dated May 26, 1999, would plainly be untimely under §§ 2244(d)(1)(A), 2254.
McMillan may well have recognized this timeliness problem and for that reason petitioned for relief under 28 U.S.C. § 2241 rather than § 2254. Section 2241, which is not subject to the limitations period set forth in § 2244(d)(1)(A), codifies the power of federal courts to grant common law writs of habeas corpus when a prisoner is "in custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2241(c)(3). Precisely because there is some overlap between the relief afforded in § 2241 and that available under § 2254 (pertaining to state convictions) and § 2255 (pertaining to federal convictions), the Second Circuit requires, as a general rule, that prisoners use §§ 2254 and 2255 instead of § 2241 to collaterally challenge their convictions. See Jiminian v. Nash, 245 F.3d 144, 147 (2d Cir. 2001); Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997). Section 2241 may be invoked only when §§ 2254 and 2255 are "inadequate or ineffective to test the legality of [a prisoner's] detention" and when "the failure to allow for collateral review would raise serious constitutional questions," as, for example, when a petitioner asserts that he is actually innocent of the crime of conviction. Id. (quoting Triestman v. United States, 124 F.3d at 377.) As the Circuit has also made plain, § 2254 relief will not be deemed "inadequate or ineffective" simply because a petitioner has allowed the time limitations for filing such a motion to expire, particularly where, as in McMillan's case, the claims prisoner seeks to raise were known to him before the limitations period began to run. Id. Further, McMillan makes no colorable showing of actual innocence.
Under N.Y. Penal Law § 160.15, a person is guilty of first degree robbery when he forcibly steals property and when he or a confederate is armed with a deadly weapon. Further, N.Y. Penal Law § 20.00 provides that one can be guilty of this crime either as a principle or as an aider and abettor. Thus, contrary to McMillan's argument. it was not necessary for him to allocute that he personally stole property from another person. At his allocution, McMillan admitted that he and his confederates entered a residential apartment building with the specific purpose "[t]o commit a robbery." Although petitioner claimed that he was not armed, he stated that he was aware that some of his confederates were carrying guns. Further, despite protestations that he lacked actual knowledge that any persons would be inside the apartment, McMillan admitted seeing that the robbers, once inside the premises, in fact tied up the various residents. Finally, although McMillan claims not to have taken any valuables and to have left the premises before the robbery was concluded, he admitted knowing that his confederates stole jewelry from the apartment. At no time did he state, nor would his allocution support a claim, that he so conclusively withdrew from the robbery conspiracy as to avoid liability under the law. Under these circumstances, the constitution does not require that his untimely collateral challenge be heard.
In sum, because § 2241 is not the proper vehicle for McMillan's collateral challenge to his state robbery conviction, and because a § 2254 petition would now be untimely, the court hereby hereby dismisses this action. Because McMillan's case was brought under § 2241 rather than § 2254, it would not appear necessary for this court to make any ruling with respect to a certificate of appealability. To the extent there is any question on this point, the court hereby denies such a certificate. The Clerk of the Court is directed to mark this case closed.